As we explained in our initial opinion, the Board charged petitioner with
violating six ethical rules. Despite petitioner's repeated requests to clarify the basis for
the charged violations, the Board did not do so. After the hearing began, the Board
announced, for the first time, that it was also charging petitioner with additional rule
violations that it had neither set out in its proposed notice of disciplinary action nor
mentioned in response to petitioner's repeated requests to clarify the basis for the Board's
charges. After considering the evidence, the Board ruled that petitioner had not violated
any of the rules that the Board had cited in its notice of disciplinary action. The Board
concluded, however, that petitioner had violated Principle 4.02--an ethical rule that the
Board had not mentioned until after the hearing began.

We held that the Board's notice did not comply with ORS 183.415(2)(c),
which requires that the notice include "[a] reference to the particular sections of the
statutes and rules involved." Villanueva, 175 Or App at 356. We also explained that, to
the extent the substantial compliance doctrine applies, the Board's notice did not
substantially comply with ORS 183.415. Id. at 356-58. We reasoned:

"This is not a case in which the rule that was allegedly violated was
apparent to both the Board and the licensee from the factual allegations, nor
is this a case in which the violation is merely technical. Rather, this is a
case in which petitioner was not informed until after the hearing had begun
that the Board was proceeding under a completely different ethical principle
than the ones cited in the notice."

Id. at 358.

In its petition for reconsideration, the Board argues that, because petitioner
offered evidence on the uncharged rule violation at the hearing, the failure to give him
adequate notice of that charge did not prejudice him. It contends that, in these
circumstances, ORS 183.482(7) requires that we affirm its order. Not only has the Board
raised ORS 183.482(7) for the first time in its petition for reconsideration, but its reliance
on that subsection is misplaced. ORS 183.482(7) provides, in part:

"In the case of disputed allegations of irregularities in procedure before the
agency not shown in the record which, if proved, would warrant reversal or
remand, the Court of Appeals may refer the allegations to a Master
appointed by the court to take evidence and make findings of fact upon
them. The court shall remand the order for further agency action if it finds
that either the fairness of the proceedings or the correctness of the action
may have been impaired by a material error in procedure or a failure to
follow prescribed procedure."

, 171 Or App 557, 562 & n 5, 17 P3d
526 (2000), rev den 332 Or 316 (2001) (distinguishing between challenges under ORS
183.482(8)(a) to alleged procedural errors that are evident on the record and challenges
under ORS 183.482(7) to alleged procedural errors that are not).

ORS 183.482(7) governs review of orders in contested cases when
irregularities in agency procedure that are not shown on the record impair the fairness of
its proceedings. In this case, however, petitioner did not seek review because there were
"irregularities in procedure * * * not shown in the record." See ORS 183.482(7). Rather,
he sought review because, among other things, the notice that the Board provided was
deficient. By its terms, ORS 183.482(7) does not apply to the claims that petitioner raised
on review. See Skeen, 171 Or App at 562 & n 5.

Relying on ORS 183.482(7), the Board argues alternatively that, even if we
adhere to our holding, we should remand the case. It reasons that, on remand, it could
issue an amended notice of hearing and include the rule violation that it failed to include
in its initial notice. As explained above, the Board's reliance on ORS 183.482(7) is
misplaced. Beyond that, if, as we reaffirm, the question whether petitioner violated
Principle 4.02 was not properly before the Board, there is nothing left for it to do on
remand. The only issues that were properly before the Board have been resolved. Having
considered the Board's arguments, we adhere to our initial decision.

Petition for reconsideration allowed; opinion adhered to.

1. The court explained in Wimber that, in determining whether an amendment
impermissibly changes an indictment, the initial question is whether the amendment
"add[s] a theory, element, or crime." 315 Or at 114-15. The next question is whether the
amendment prejudiced the defendant. Id. We explained in Alben that, if the answer to
either question is "yes," the amendment is not permitted. 139 Or App at 241.

2. The Board does not claim that petitioner impliedly consented to trying the
issues raised by Principle 4.02. Rather, he objected to the admission of any evidence on
that point because it was not relevant to the charges that the Board had alleged in its
notice.